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Unfit for the Bench

A Trump judicial nominee wrote one of the infamous Bush-era “torture memos.”

Drew Angerer/Getty Images
Committee chairman Sen. Chuck Grassley, ranking member Sen. Dianne Feinstein, and Sen. Patrick Leahy talk with each other during a Senate Judiciary Committee hearing on Dec. 6 in Washington.
Drew Angerer/Getty Images

A number of President Donald Trump’s judicial nominations have collapsed in recent days after the candidates’ utter lack of qualifications was revealed, signaling (at a minimum) poor vetting on the part of the administration. The most stunning failure was Matthew Peterson, who became an internet sensation and meme generator when he could not answer even basic questions about U.S. law. Also in the candidates’ graveyard is Jeff Mateer, who in 2015 stated that transgender children are part of “Satan’s plan.” Mateer also prophesied that same-sex marriage would lead to bestiality and lamented the banning by some states of harmful and bogus “conversion therapies” for gay and lesbian persons.

One additional problematic candidate is scheduled for a hearing this month: Howard C. Nielson, who has been nominated for the district court in the District of Utah. The intrepid Alliance for Justice, which has worked assiduously to defeat several judicial nominees, has published a worrisome blog on Nielson calling into question his fitness to enjoy life tenure as a federal judge. (AFJ normally focuses its work on appellate judges; there are so many problematic district court judges in play that it has expanded its vetting role to help Senate staffers and others evaluate candidates.)

AFJ’s research reveals much about Nielson that is problematic, including his work on behalf of the National Rifle Association, his spurious motion to have a judge recused because of the latter’s sexual orientation, and his involvement in impermissible politicized and ideological hiring at the U.S. Department of Justice during the administration of George W. Bush. (The fault-finding 2008 report by the DOJ’s Office of the Inspector General and Office of Professional Responsibility is here).

I raised a concern about Nielson’s fitness as a lawyer on Just Security a year ago when I brought readers’ attention to a memo Nielson had written in 2005 while at the DOJ’s Office of Legal Counsel. Nielson’s memo is here in the OLC’s Freedom of Information Act (FOIA) reading room. At the time he wrote the memo, Nielson worked under Stephen Bradbury, one of the infamous authors of the “torture memos,” which Sen. John McCain has described as “permission slips” for torture. Bradbury’s role providing legal cover for custodial abuses re-emerged during his confirmation hearings for the Department of Transportation. In signaling he would vote against Bradbury, McCain tweeted:

Nielson earlier wrote to the Washington Post defending his ex-boss and essentially admitting to his own involvement in producing the torture memoranda.

In my previous post, I gave a close critique to Nielson’s own memo “to the file” setting forth a crazy (and dangerous) theory about the applicability of the Geneva Conventions that would also countenance the extraterritorial torture of civilians.

The argument gets rather technical, but the short of it is that Nielson argued that the Geneva Convention devoted to the protection of civilians in enemy custody or detention only applies to civilians held on U.S. territory. That treaty (the Fourth Geneva Convention governing international armed conflicts) requires signatories to treat all civilian detainees humanely and prohibits torture and other forms of mistreatment.

If Nielson’s theory of the treaty were to prevail, United States personnel could torture civilians—so long as they did so outside the United States—without breaching the treaty. Under the same reasoning, our adversaries could harm U.S. civilians in their custody, so long as the victims were not brought back to the territory of the belligerent in question. In short, the memo advocates for the removal of any constraints on how treaty signatories (which now number all the states of the world) treat civilians outside their territories. This warped interpretation finds no support in international or domestic jurisprudence, the treaties’ drafting history, the treaties’ humanitarian object and purpose, or legal scholarship (even scholarship advancing conservative readings of the treaties).

Separate and apart from its flawed substance, the memo reveals exceedingly bad lawyering. Most importantly, like many of the Bush administration’s post-9/11 legal analyses, the memo contains results-driven reasoning that fails to engage (or even cite) all (or any of) the opposing precedent and contrary interpretations out there. This approach makes a mockery of the proper role of the OLC, which is to give candid, apolitical, and accurate legal advice to the White House. Furthermore, Nielson cites no support for his position in jurisprudence, scholarship, or the legislative history of the treaties.

In next week’s hearings, the Senate Judiciary Committee should ask Nielson pointed questions about:

1. His role in the production of the suite of torture memos produced by the OLC, including those ostensibly authored by his boss.

2. Whether he still stands by his opinion that the Geneva Conventions do not constrain how the United States treats civilians in its custody or control outside of the United States.

3. Whether he still thinks the torture memos articulate valid legal advice for the White House.

Incidentally, this scenario reveals why memos such as Nielson’s should have been repudiated and withdrawn by OLC prior to the end of the Obama administration, as I advocated. As it stands, the memo remains in the file as a presumptively valid piece of legal analysis and a legally-available interpretation of the Fourth Geneva Convention. Although it was not as salient as the other torture memos, which were rejected and withdrawn, Nielson’s memo could still be resurrected and put the United States’ treaty compliance—and the well-being of civilians in our custody—in jeopardy if implemented.

More from Just Security:

Mueller Wasn’t Appointed Pursuant to the DOJ Regs (and other assorted flaws in the Manafort suit)

Justice for Atrocities Is Hard (So Get It Right in Darfur)

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